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Electric vehicle plan could present problems

Rodrigue Escayola says it would be difficult for the province to impose some of the recommendations related to electric car chargers on all existing condo buildings in Ontario.

An attempt by the provincial government to introduce rules allowing the installation of electric car chargers in condominium buildings could run into some problems, say lawyers.

The Ontario government’s Climate Change Action Plan set an electric and hydrogen passenger vehicle sales target of five per cent in 2020. To help accommodate that plan, it proposes to increase access to the infrastructure required to charge electric vehicles by making it easier for condo corporations to install charging stations in existing buildings.

The initiatives being considered as it moves toward developing new regulations include lowering the level of owners’ consent to allow the exchange of parking spaces, an exemption for notice requirements for the installation of the chargers and equipment, require condo boards to approve an owner’s request to install a charger, allow the use of the reserve fund for the chargers and require the installation of two charging stations where requested.

Ottawa condo lawyer Rodrigue Escayola, partner with Gowling WLG (Canada) LLP, says it would be difficult to impose the recommendations on all the existing condo buildings in Ontario because the province’s estimated 700,000 condo units vary in size, shape, location and how they are managed.

“You can’t approach it with a cookie cutter,” says Escayola.

“[T]he province is attempting now to implement new regulations that will facilitate or twist our arm slightly toward a greener sort of more acceptable way of living. So how do we do that when we have all these different condo corporations?”

The Ministry of Government and Consumer Services launched a month-long consultation process in December, looking for feedback on suggestions on how it might make it easier for condo complexes to accommodate the use of electric cars.

The province says through its latest consultation process that it might make installations in condos easier by loosening its requirements for substantive change under the Condominium Act. A substantive change to common elements of a condo building represents more than 10 per cent of the annual budget and triggers the need for a vote, requiring two-thirds support of condo owners for it to go ahead.

“This process makes it very difficult, even for an [environmentally] conscientious corporation community, to implement changes. What the province is proposing are ways of minimizing or reducing the kind of process that needs to be followed,” says Escayola.

Christopher J. Jaglowitz, who practises condominium law with Gardiner Miller Arnold LLP in Toronto, is worried that some of the suggestions bypass legislation intended to protect condo owners. He says the Condo Act is created with “safeguards and protections” to ensure a condo corporation doesn’t incur unnecessary expenses and that allocations for the various responsibilities, such as fire insurance, are covered.

“If you short-circuit some of the requirements, which is what some of these regulatory proposals aim to do, now you’ve created a great deal of risk for the condo corporation,” he says.

Among Jaglowitz’s concerns is the proposal that allows condo corporations to pay for the installation of chargers through reserve funds. Reserve funds are intended for major repairs and replacement of common elements and assets, which he says is a very restricted pool of money. Some of those funds, he adds, are underfunded and may not adequately cover the costs of necessary repairs.

Currently, under the Condo Act, condo owners can request a meeting and vote down a proposal if the cost of that change is greater than one per cent of the annual budget of the condominium corporation. But the proposal would allow the corporation to bypass that process.

Jaglowitz says that the proposal allowing condo owners to petition the board to compel it to install chargers goes in an entirely new direction.

“It’s completely without precedent what the government has proposed,” he says.

Both those requirements might rather be tied to the financial viability of the condo corporation, suggests Denise Lash of Lash Condo Law in Toronto. She says those proposals should apply only to boards that haven’t been in a deficit position for at least two years.

She would like to see condo corporations that can demonstrate they are experiencing a deficit be exempt from having to install the chargers, as well as not having to dip into their reserves.

“I’m not sure imposing a requirement on every corporation to put in these spots — I don’t know what kind of hardship that would be,” she says. “If you’re in a terrible shape [and] you need to do repairs, should you really be installing EV chargers?”

The challenge is how any new regulations might apply to condominium complexes that vary so dramatically across the province, Escayola says. That is complicated by the fact that there are a finite number of parking spaces in existing buildings and not all are managed the same way. Some condo boards treat parking spots as separate units that can be purchased, some are exclusive-use spots and other condo corporations consider them a general common element overseen by the condo board.

One proposal Escayola thinks would work is to provide condo owners with the right to install a car charger if they fulfil a series of requirements, such as paying all the related expenses themselves. But he is particularly concerned over the proposal that requires condo corporations to install a prescribed number of spaces based on the number of units in the building in common element parking.

“Having to balance limited resources and competing needs or wants — this is the age-old challenge of condominium corporations,” he says.

The goal of condo living is for people to pool their resources, giving them the ability to share common elements they may not be able to do on their own. The condo board then becomes the governing body of that small community, managing those assets while balancing the needs and wants of condo owners with their obligations all within the limited resources available.

Escayola worries that adding to those obligations by requiring condo boards to install a prescribed number or ratio of chargers when they’re requested could skew that balance that the condo corporation was able to previously achieve.

“To me one size does not fit all and we must respect the ability of boards to manage their own assets,” he says. “You’ve got to let them build what makes sense in their community.”

The provincial government indicated that the feedback it has received will assist the ministry in finalizing the proposed regulations to establish requirements to make it easier to install EV charging stations for residents and owners in condominiums. Its goal is to have these changes come into force this coming spring.